CCPR/C/117/D/2124/2011 Annex III Individual opinion (partly concurring and partly dissenting( of Committee members Yuval Shany and Sir Nigel Rodley 1. We agree with the Committee that there is no basis to find a violation of the Covenant in the present case. The Committee does not serve as a court of final appeal, and has no reason to doubt the outcome of a criminal case, involving the application in good faith by an independent court of a criminal law provision, which the authors themselves consider to meet the requirements of article 20 of the Covenant. 2. We are, however, not persuaded that the Committee should have taken jurisdiction over the case to begin with, since the failure of the authors to bring civil proceedings against Mr. Wilders pursuant to article 6:162 of the Civil Code represents in our view a failure to exhaust domestic remedies. 3. The majority of members took the position that the authors sought that Mr. Wilders’ conduct be evaluated and characterised as criminal within the definition contained in section 137d of the Criminal Code, and that “that determination could be obtained only in criminal proceedings” (para. 9.4). As a result, they were of the opinion that the initiation of separate civil proceedings by the authors would not have constituted an effective remedy. This position stands, however, in marked contrast to the holding by the Committee on the merits (para. 10.4) that article 20 of the Covenant does not expressly require criminal penalties to accompany the prohibition of incitement to discrimination, hostility of violence, and that a legal prohibition effectively enforceable by administrative or civil remedies may also meet the requirements of article 20.a 4. To our mind, the authors have not adequately explained why proceedings based on article 6:162 of the Civil Code, in which civil remedies for acts contrary to article 20 of the Covenant could be sought, would not offer them an effective remedy in the particular circumstances of the case. The authors have not contested the State party’s assertion that civil proceedings may result not only in the award of monetary compensation, but may also entail a legal ban on future statements by Mr. Wilders and a declaratory judgment proclaiming the illegality of his statements (para. 4.4). Such a set of remedies could be deemed, in principle, a reasonable way to implement the State party’s obligations under article 20, especially when complemented by the ‘chilling effect’ achieved by the mere existence of a criminal law prohibition, which can be applied in suitable cases. 5. Thus, the question is not, as implied by the majority, what remedies the authors sought to achieve, but rather what effective remedies the State party made available to them for enforcing their rights under the Covenant. In the circumstances of the case, we do not consider it refuted that the remedies offered in civil proceedings were sufficiently robust to be regarded as effective to implement the State party’s article 20 obligations. In fact, the lower burden of proof applicable in civil proceedings (which falls short of the criminal ‘beyond reasonable doubt’ standard) may render such proceedings more effective in curbing hate speech for aggrieved individuals than the ‘aggrieved parties’ procedure pursued by the authors, which allowed them to join as civil parties the criminal case against Mr. Wilders. a For support in the travaux préparatoires, see Marc Bossuyt, Guide to the “Travaux Préparatoires” of the International Covenant on Civil and Political Rights (1987) 406 (“The view was expressed that states parties would be free to enact whatever legislation they deem appropriate to put the article into effect”). 23